Clay v. State

309 Ga. 593

847 S.E.2d 530

CLAY

v.The STATE.

S20A0727

Supreme Court of Georgia.

Decided: August 24, 2020

James R. Clay, pro se.

Daniel J. Porter, District Attorney, Lee F. Tittsworth, Samuel R. d'Entremont, Daniel Sanmiguel, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.

Melton, Chief Justice.

Following a jury trial, James Rashad Clay, acting pro se, appeals his convictions for malice murder and related offenses in connection with crimes committed against Rashonda Patterson and Joseph Emener.¹ On appeal, Clay enumerates numerous errors, and, for the reasons set forth below, we affirm.

1. As an initial matter, Clay enumerates many alleged errors that are not preserved for appellate review. Specifically, Clay asserts: that the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it failed to produce a gunshot residue test;² that his indictment was void because it was not returned in open court, because it contained numerous substantive and non-amendable defects, and because he is "actually innocent" of the charges;³ that there were issues concerning the composition of his jury pool and the qualification of a member of the petit jury; that the State violated Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; that the State committed prosecutorial misconduct by allegedly violating his attorney-client privilege prior to trial;⁴ and that the judge who presided over his case did so in violation of Uniform Superior Court Rule 3.1 (discussing method of assignment of cases). Because Clay failed to raise these issues in the trial court below and to obtain a ruling on them, and because none of these claims assert an evidentiary or instructional error reviewable for plain error, see Gates v. State , 298 Ga. 324, 327 (3), 781 S.E.2d 772 (2016) (holding that the plain error test for alleged jury instruction errors also applies to evidentiary errors), they are not preserved for appellate review by this Court, see Harris v. State , 304 Ga. 276, 279 (2), 818 S.E.2d 530 (2018).

2. Turning to the enumerations preserved for appellate review, Clay first asserts that the evidence presented at trial was insufficient to support his convictions. In support of this claim, Clay attacks the evidence presented against him at trial. However, "[t]his Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (Citation and punctuation omitted.) Hayes v. State , 292 Ga. 506, 506, 739 S.E.2d 313 (2013).

Viewing the evidence presented at trial in this light, the record shows that Clay had been a resident at the Suburban Lodge, an extended-stay motel located in Gwinnett County. However, prior to the day of the crimes, Clay was banned from the premises. Despite this, Raymond Robertson, a resident at the motel, saw Clay on the property the day before the crimes. Then, on July 5, 2012, Clay entered the motel and rode the elevator to the third floor with Ronald Collins, another resident at the motel who had known Clay for years. During their elevator ride, Clay took out a 9-millimeter pistol and cocked it. Collins asked "who you got that for," to which Clay responded, "it ain't for you." The men exited the elevator together and walked in opposite directions; when Collins reached his room, he called the front desk to inform them that Clay was on the property.

Meanwhile, Patterson was in her motel room with her daughter Miyah, her mother Denise, and her fiancé Emener. The group was getting ready to watch a movie when they heard a knock on the door. Both Emener and Patterson approached the door. Patterson looked through the peephole and asked the person standing on the other side of the door to identify himself. Just then, two shots were fired through the closed door. One bullet struck Patterson in the head, killing her immediately, and the second bullet struck Emener in his leg.

Law enforcement officers arrived at the scene and found Patterson unresponsive. Officers located two bullet holes in the door, two cartridge casings outside the door, and one bullet inside the room. During Patterson's autopsy, the medical examiner retrieved a single bullet from Patterson's head and noted the presence of wood splintering around her face; the medical examiner concluded that Patterson died as a result of the gunshot.

Witnesses provided a description of Clay to officers, and, after a short canvass of the vicinity, Clay was found at a nearby apartment complex. He was carrying a 9-millimeter pistol that the State's firearm examiner later matched to the shell casings and bullets collected from the scene and from Patterson's autopsy.

Clay testified at trial and denied being at the motel on the date of the murder and denied committing the shooting. However, he admitted holding a grudge against Emener's identical twin brother based upon allegations that Emener's brother had abused Clay's mother.

Based on the foregoing, the evidence presented at trial was sufficient to enable a rational trier of fact to find Clay guilty beyond a reasonable doubt of the crimes for which he was convicted.⁵ See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. Clay argues that he is entitled to a new trial because his convictions were obtained based upon the perjured testimony of lay witnesses Collins and Robertson. See OCGA § 17-1-4. However, Clay has produced no evidence that either witness has been convicted of perjury or that their prior testimony was "the purest fabrication." (Citation and punctuation omitted.) Glover v. State , 296 Ga. 13, 15 (2), 764 S.E.2d 826 (2014). To the extent Clay argues that the witnesses’ statements at trial qualify as perjury, that argument fails because such statements relate only to the witnesses’ credibility and are "merely impeaching." Id.⁶

4. Clay alleges that the trial court erred by: (a) allowing the introduction of "tainted" gun evidence at trial; (b) admitting Clay's custodial statement into evidence because he did not make that statement freely and voluntarily; and (c) failing to suppress the pre-trial identifications by Collins and Robertson. We address each of these claims in turn.

(a) Gun evidence.

At trial, the court admitted the 9-millimeter pistol recovered from Clay into evidence. The State also called its lead detective as a witness. During his testimony, the detective explained that, in order to determine the cartridge capacity of the confiscated weapon, he removed unfired rounds from his duty weapon and placed them into the magazine of Clay's 9-millimeter until it was full. The detective testified that the magazine could only hold two additional rounds before the magazine was at full capacity. On appeal, Clay alleges that the trial court erred by admitting the 9-millimeter into evidence because, he alleges, the lead detective's actions amounted to "evidence tampering." However, because Clay did not object to this testimony or the admission of the gun as evidence at trial, we can review this claim only for plain error.⁷ See Gates , 298 Ga. at 327 (3), 781 S.E.2d 772.

Other than providing a conclusory citation of OCGA § 16-10-94,⁸ the statute criminalizing evidence tampering, Clay cites no legal authority or record evidence to support his claim that the detective's actions amounted to tampering. Nor have we found any such authority to support his proposition. Because "[a]n error cannot be plain where there is no controlling authority on point," (Citation and punctuation omitted.) Simmons v. State , 299 Ga. 370, 374 (2), 788 S.E.2d 494 (2016), Clay has failed to show that the trial court's ruling amounted to clear or obvious error, let alone plain error.

(b) Clay's statement.

Next, Clay argues that the trial court erred by admitting his custodial statement to law enforcement into evidence at trial because officers made "inappropriate statements" during the interview.⁹ Prior to trial, Clay filed a motion to suppress his statement to officers, arguing that detectives offered him a hope of benefit in violation of OCGA § 24-8-824 by stating that Clay could face different potential charges depending on what had occurred, that those charges carried different sentences, and that Clay had an opportunity to help himself out by telling the truth. To the extent that Clay is arguing this same issue on appeal, it fails because we have repeatedly held that these types of statements by law enforcement officers do not amount to a hope of benefit under OCGA § 24-8-824. See Dawson v. State , 308 Ga. 613, 620 (3), 842 S.E.2d 875 (2020) (listing cases where similar statements by law enforcement did not constitute a hope of benefit). Accordingly, the trial court did not err by admitting Clay's statement at trial.

(c) Witness identifications.

Next, Clay challenges the witness identifications of him by Collins and Robertson. We see no error. Concerning Collins's out-of-court identification, Clay argues that it resulted from an impermissibly suggestive identification procedure because Collins saw Clay being transported from the scene in handcuffs prior to his identification. This, Clay argues, tainted Collins's subsequent in-court identification.

As an initial matter, while Clay did seek to suppress Collins's photo lineup identification, that evidence was not introduced at trial. And, because Clay did not object to Collins's in-court identification, we can review this claim only for plain error. See Gates , 298 Ga. at 327 (3), 781 S.E.2d 772. Once again, Clay has failed to show that the trial court committed clear or obvious error. It is well settled that "even if an out-of-court identification is impermissibly suggestive, a...